Guardian knows best? A twist in Elian's case

WASHINGTON
— Just when you thought it was over - it isn't. In a little-noticed move, a judge is setting the stage for what may become yet another major plot twist in the mushrooming saga of the six-year-old boy from Cuba.

Judge James Edmondson of the 11th US Circuit Court of Appeals is considering whether to appoint an independent "guardian ad litem" to represent Elian Gonzalez - a move that in theory could ultimately result in Elian's removal from his father's custody and send him back to his Miami relatives.

While such an outcome is unlikely, analysts say, it is not without precedent.

The action comes in the wake of a controversial predawn raid last Saturday in which armed federal agents wrested custody of the boy from his Miami relatives and reunited him with his father here in Washington.

But now Judge Edmondson, who is among three judges slated to hear Elian's case on May 11, is considering whether to appoint someone else to look after Elian's interests.

Earlier this week, the judge ordered Justice Department lawyers to "explain why the court should not now appoint someone, acting as a friend-of-the-court and special guardian ad litem, to report to the court directly on [Elian's] condition and care as well as the circumstances of his present custody."

A guardian ad litem is appointed by a judge for the sole purpose of deciding what is in the best interests of a child. The determinations are made regardless of any interests of the father, other relatives, the Cuban government, or even the US government.

Initially, the guardian ad litem would likely examine whether Elian has been subject to any pressure by his father or Cuban officials to withdraw the application filed on his behalf seeking political asylum in the United States.

"This is a young child who is obviously very impressionable and easily influenced," says Stanley Watson of the Alabama Policy Institute in Birmingham, who has been following the case.

"I think the court wants to ensure that the father is not attempting to influence him into withdrawing his earlier request for asylum."

Mr. Watson says, "Any person who looks at this with an informed sense of the way things operate in Cuba would be concerned that Elian's father would come under pressure from Cuban officials and would feel compelled to try to dissuade Elian from pursuing an application for asylum."

Experts say a guardian ad litem could examine the full range of issues raised in Elian's case, including the circumstances surrounding the controversial home video, produced by his Miami relatives, that showed Elian telling his dad that he didn't want to go back to Cuba.

In addition, a guardian ad litem could determine whether it is in Elian's best interest to remain in his father's custody while the appeals in his case are pending, whether he should be returned to his Miami relatives, or even if he should be placed with a third party.

The court-appointed representative also would likely seek to determine the ultimate question in Elian's case: Whether it would be in the child's best interest to return to Cuba with his father or remain in the US with his Miami relatives.

None of the recommendations of a guardian ad litem are binding on the court, but judges have broad powers to adopt those recommendations and order federal officials to carry them out.

The appointment of a guardian ad litem in Elian's case would be particularly significant because it would subvert the parental rights of Elian's father, Juan Miguel Gonzalez, to speak exclusively for his son, legal experts say.

Justice Department lawyers are urging the court to recognize Mr. Gonzalez's parental rights as superior and not to appoint a guardian ad litem. And his lawyer, Gregory Craig, is asking the three-judge panel to allow the father to replace the Miami relatives in the asylum case. He is also urging that a guardian not be appointed.

Their reasons are clear.

Rita Simon, a professor at American University and an expert in international child custody disputes, says a judge could order Elian returned to his Miami relatives. It would be a move that many supporters of Elian's father - and the Cuban government - would view as a judicial version of Janet Reno's predawn raid.

"Hopefully, it would be done without machine guns, " Ms. Simon adds.

But she says that such an outcome appears unlikely. "My guess is that the father will retain custody, but it is no longer as strong a likelihood as before this [guardian ad litem issue] came up," she says.

In a 1980 case also involving an international tug of war over a young child, a Mexican mother lost her bid for custody of her daughter when a court-appointed guardian ad litem decided that the child's best interests were to grow up with US foster parents.

That case is binding precedent in the 11th Circuit, which includes Miami, where Elian's claim for political asylum was filed.

But the key to the 1980 case was the length of time the little girl had spent bonding with her American foster parents.

Elian was in the midst of a similar bonding experience with his Miami relatives, according to a psychologist retained by the Miami family. But that bonding was cut short by last Saturday's predawn raid.

Michael Dale, a professor of family law at Nova Southeastern University in Fort Lauderdale, Fla., says it is unclear whether a guardian ad litem should be appointed.

"The issue is whether the child has some independent right to apply for political asylum in the US and the competence to file such an application," he says.

"My understanding from representing a lot of kids is that a six-year-old lacks the cognitive ability to make decisions that involve abstract thinking that would be necessary [to knowingly pursue an asylum application]," says Dale. "They only think in the here and now."

Under such circumstances a parent is usually relied upon to make these kinds of judgments - unless the court appoints a guardian ad litem.